Boogaard v. Canada (Attorney General),

Boogaard v. Can. (A.G.) (2015), 474 N.R. 121 (FCA)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2015] N.R. TBEd. JL.003

The Attorney General of Canada (appellant) v. Staff Sergeant Walter Boogaard (respondent)

(A-556-14; 2015 FCA 150; 2015 CAF 150)

Indexed As: Boogaard v. Canada (Attorney General)

Federal Court of Appeal

Stratas, Scott and Boivin, JJ.A.

June 22, 2015.

Summary:

Boogaard was a staff sergeant with the Royal Canadian Mounted Police. He sent letters to the Commissioner of the RCMP requesting promotion. The Commissioner replied by way of a letter marked "without prejudice". Boogaard considered the letter to be a decision rejecting his requests. He applied for judicial review.

The Federal Court, in a decision reported at [2014] F.T.R. Uned. 449, allowed the application and directed the Commissioner to do as much as he could to promote Boogaard to the rank of inspector. The Attorney General appealed.

The Federal Court of Appeal allowed the appeal.

Administrative Law - Topic 542

The hearing and decision - Decisions of the tribunal - What constitutes a decision - [See Practice - Topic 9072 ].

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - [See Police - Topic 6742 ].

Police - Topic 4038

Internal organization - Promotions - Judicial review - Boogaard, an RCMP officer, had his gun stolen by two sex workers while he was on duty in 2000 - Boogaard said that the women stole the gun from his vehicle while he was in a restaurant - The women said that they stole the gun while in the vehicle with Boogaard and while he was negotiating a price for sex - An investigation was unable to resolve these differing accounts - Ultimately, Boogaard was disciplined according to an agreed statement of facts in which he admitted that it was disgraceful for him to leave his gun unattended in his car - The agreed statement said nothing about whether Boogaard might have been negotiating for sex - Although Boogaard's record over the next 15 years was excellent and beyond reproach, his request for a promotion was denied by the RCMP Commissioner - An application judge found that the Commissioner's decision was unreasonable and ordered him to do as much as he could to promote Boogaard - The Federal Court of Appeal allowed the Attorney General's appeal - The unresolved conflict over what happened with the sex workers created a cloud of uncertainty over Boogaard - The opacity of the cloud and whether it was outweighed by Boogaard's overall performance record were matters of judgment for the Commissioner - As the Commissioner's concerns were articulable and had an air of reality, he was entitled to rely on them - See paragraphs 54 to 86.

Police - Topic 4038

Internal organization - Promotions - Judicial review - [See Police - Topic 6742 ].

Police - Topic 6621

Police Commission and R.C.M.P. Commissioner - Duties and powers - General - [See first Police - Topic 4038 ].

Police - Topic 6742

Police Commission and R.C.M.P. Commissioner - Judicial review - Scope or standard of review - The Federal Court of Appeal discussed the application of the reasonableness standard of review to a decision of the RCMP Commissioner which rejected an officer's request for promotion - The court stated that the Commissioner was entitled to a very broad margin of appreciation over his promotion decisions under s. 5(1) of the Royal Canadian Mounted Police Act - In making promotion decisions, the Commissioner had to draw upon his knowledge, experience, expertise concerning the needs of the police force, the management of policing, and his appreciation of what sort of individual would best advance the objectives of the police force and fulfill the public interest - While the promotion was of great importance to the officer in this case, people did not typically have a "right" to a promotion - Further, a promotion decision was a complex, multifaceted decision involving a sensitive weighing of information, impressions and indications using criteria that might shift and be weighed differently from time to time depending on the changing and evolving needs of the organization - However, in finding that the Commissioner was entitled to a very broad margin of appreciation in this case, the court was not suggesting that he was anything close to immune from review - Even the broadest grant of statutory power had to be exercised in good faith, in accordance with the purposes of the provision, the governing statute and the Constitution - See paragraphs 32 to 53.

Practice - Topic 9072

Appeals - Federal Court of Appeal - Grounds for appeal - Boogaard, a staff sergeant in the RCMP, sent letters to the Commissioner of the RCMP requesting promotion - The Commissioner rejected Boogaard's request by way of a letter marked "without prejudice" - Boogaard, considering the letter to be a reviewable decision, applied for judicial review - The Attorney General argued that the letter was covered by negotiation/settlement privilege and was therefore not a decision that could be reviewed under the Federal Courts Act - The application judge rejected this argument - The Attorney General appealed - The Federal Court of Appeal stated that the standard of review of a decision on a preliminary objection to judicial review was the appellate standard of review set out in Housen v. Nikolaisen (2002 SCC), not the administrative law standard of review set out in Dunsmuir (2008 SCC) - Thus, in order for the court to set aside the finding that the letter was not privileged and was a decision letter, the Attorney General had to establish that the application judge either erred on an extricable legal issue or committed a palpable and overriding error - The Attorney General failed to establish either of these things - See paragraphs 24 to 30.

Cases Noticed:

Boogaard v. Canada (Attorney General), [2013] F.T.R. Uned. 118; 2013 FC 267, refd to. [para. 22].

Budlakoti v. Canada (Minister of Citizenship and Immigration) (2015), 473 N.R. 283; 2015 FCA 139, refd to. [para. 25].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 28].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 28].

Atomic Energy of Canada Ltd. v. Wilson (2015), 467 N.R. 201; 2015 FCA 17, refd to. [para. 28].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2013] 2 S.C.R. 559; 446 N.R. 65; 2013 SCC 36, refd to. [para. 34].

Canada (Attorney General) v. Delios (2015), 472 N.R. 171; 2015 FCA 117, refd to. [para. 35].

Catalyst Paper Corp. v. North Cowichan (District), [2012] 1 S.C.R. 5; 425 N.R. 22; 316 B.C.A.C. 1; 537 W.A.C. 1; 2012 SCC 2, refd to. [para. 36].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 36].

McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 36].

Farwaha v. Canada (Minister of Transport, Infrastructure and Communities) (2014), 455 N.R. 157; 2014 FCA 56, refd to. [para. 36].

Asad et al. v. Canada (Minister of Citizenship and Immigration) (2015), 474 N.R. 258; 2015 FCA 141, refd to. [para. 36].

Canada (Attorney General) v. Almon Equipment Ltd., [2011] 4 F.C. 203; 405 N.R. 91; 2010 FCA 193, refd to. [para. 43].

Abraham et al. v. Canada (Attorney General) (2012), 440 N.R. 201; 2012 FCA 266, refd to. [para. 44].

Canadian Human Rights Commission v. Canada (Attorney General) et al. (2013), 444 N.R. 120; 2013 FCA 75, refd to. [para. 44].

Mounted Police Association of Ontario et al. v. Canada (Attorney General) (2015), 466 N.R. 199; 328 O.A.C. 1; 380 D.L.R.(4th) 1; 2015 SCC 1, refd to. [para. 47].

Walchuk v. Canada (Minister of Justice) (2015), 469 N.R. 360; 2015 FCA 85, refd to. [para. 49].

Erasmo v. Canada (Attorney General) (2015), 473 N.R. 245; 2015 FCA 129, refd to. [para. 49].

Roncarelli v. Duplessis, [1959] S.C.R. 121; 16 D.L.R.(2d) 689, refd to. [para. 53].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 76].

Forest Ethics Advocacy Association et al. v. National Energy Board et al. (2014), 465 N.R. 152; 2014 FCA 245, refd to. [para. 81].

League for Human Rights of B'nai Brith Canada v. Canada (Attorney General) et al. (2010), 409 N.R. 298; 2010 FCA 307, refd to. [para. 81].

Authors and Works Noticed:

Nadeau, Alain-Robert, Federal Police Law, 2010 (2009), p. xiv [para. 47].

Counsel:

Gregory S. Tzemenakis and Adrian Bieniasiewicz, for the appellant;

Paul Champ and Bijon Roy, for the respondent.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;

Champ & Associates, Ottawa, Ontario, for the respondent.

This appeal was heard at Ottawa, Ontario, on June 3, 2015, before Stratas, Scott and Boivin, JJ.A., of the Federal Court of Appeal. Stratas, J.A., delivered the following judgment for the court on June 22, 2015.